Judge Christian R. Gullon, Case Number: 23PSCV01031, Date: 2023-09-12 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV01031, Date: 2023-09-12 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

DEFENDANT TERESA A. VIVAR'S DEMURRER TO PLAINTIFF’S COMPLAINT is SUSTAINED in part WITHOUT leave to amend (i.e., as to 1^st-4^th COAs) and OVERRULED in part (i.e., as to the 5^th COA).

This case is based upon an alleged Marvin agreement.[1] Plaintiff ANN MARIE GROVES alleges the following against Defendant TERESA A. VIVAR: The parties met in 1997 and soon thereafter “they entered into oral agreement wherein Defendant agreed that during the time that the parties maintained their relationship the Defendant would combine her skills, efforts, labor and earnings and would share equally with Plaintiff any and all property acquired and accumulated as a result of her skills, efforts, labor and earnings.” (Complaint ¶6.) However, on March 31, 2021 (Complaint ¶11, 12), Defendant breached said agreement by failing to recognize Plaintiff's interest in certain Equitable Property (earnings and real and personal property).[2]

On April 7, 2023, Plaintiff filed suit for the following causes of action (COA):

In pertinent part, a demurrer may be asserted on any one or more of the following grounds: the pleading does not state facts sufficient to constitute a cause of action. (Code of Civ. Proc., §430.10, subd. (e).)[4] A complaint is given a reasonable interpretation, “reading it as a whole and its part in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Ibid; see also Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) “To the extent the factual allegations conflict with the content of the exhibits to the complaint, [a court] rel[ies] on and accept[s] as true the contents of the exhibits and treat[s] as surplusage the pleader's allegations as to the legal effect of the exhibits.” (Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505) (emphasis added).

As a prefatory matter, neither party has complied with California Rules of Court Rule 3.300 which requires a party to file a notice of a related case. The Notice of Related Case must be served and filed as soon as possible.

2. At the time of the alleged oral agreement, same sex marriage was illegal; thus, the complaint seeks to enforce an illegal contract.

The SOL for breach of an oral agreement is two years. (Code of Civ. Proc., § 339.)

Here, the complaint states that the date Defendant allegedly breached the oral argument on March 31, 2021. Two years from March 31, 2021 is March 31, 2023. However, Plaintiff did not file her complaint until April 7, 2023, making the action untimely by about one week. Accordingly, on its face, the action is time barred. (Valvo v. Univ. of Southern California (1977) 67 Cal.App.3d 887, 895; Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1155 [A demurrer on the ground of the bar of the statute of limitations lies where it “appear[s] clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.”].)

In opposition, Plaintiff concedes that the SOL bars the first through fourth COAs, but requests that the court grant leave to amend to change the date of discovery to April 7, 2021. (Opp. p. 6.)

The court will not grant leave to amend because, as noted by Defendant, Plaintiff “conveniently changed” (Reply p. 2:25-26) the date of discovery of Defendant’s alleged breach to a date that would accommodate the causes of action and has done so without any explanation (i.e., provided facts to demonstrate why the breach discovered on April 7, 2021 rather than March 31, 2021).

Assuming arguendo that Plaintiff’s opposition had provided a reasonable explanation as to the discovery date change, the judicially noticed matters provide an alleged breach/repudiation well before March 31, 2021.[5] For example, Plaintiff’s Request for Order filed on September 14, 2020 contains Plaintiff’s declaration, dated to August 31, 2020, wherein Plaintiff acknowledges similar facts alleged now: Plaintiff provided the domestic duties and Defendant controlled the finances and accumulated substantial wealth. (RJN, Ex. 1, p. 11 of 43 of PDF.) And in another declaration dated September 16, 2020, Defendant contends that Defendant is the “sole owner” of the property, which again tacitly acknowledges that by September 16, 2020, there was a dispute as to the ownership interest in the real property (suggesting Defendant’s purported repudiation of any agreement). (RJN No. 2, p. 20 of 43 of PDF.) All in all, the family law matter (20PSFL00930) indicates that even before March 31, 2021, Defendant had repudiated any alleged oral agreement for the sharing of Equitable Property. Thus, the SOL bars the 1^st COA for specific performance based on breach of express contract; 2^nd COA for impress constructive trust based on breach of express contract; 3^rd COA to impress constructive trust or damages based on breach of implied in fact contract; and 4^th COA for declaratory relief based upon the agreement.[6]

Therefore, the court SUSTAINS the demurrer as to the 1^st through 4^th COA. Though the court is aware that denial of leave to amend is reviewed for abuse of discretion, the court need not grant leave to amend when the pleading clearly shows that the suit is barred by the statute of limitations. (Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, 154.) To the extent that Plaintiff seeks to change the date of the breach, that would but create a sham pleading. Therefore, the court DENIES leave to amend.

Though Defendant’s demurrer argues that the fraud COA is also barred by the SOL, Defendant’s analysis fails to address that fraud carries a three-year SOL, not two. (See Opp. p. 5, Code of Civ. Proc., section 338, subd. (d).) Thus, three years from the discovery date of March 31, 2021 (i.e., when Plaintiff discovered that Defendant did not intend on keeping her promises) is March 31, 2024, making the COA timely.

To the extent that Defendant argues that the 5^th COA is based upon an illegal contract, the court is uncertain how so. The allegations are not the parties were married in violation of the law, but that their partnership was akin to a marriage; there was nothing illegal about being in a non-marital same sex partnership.

Therefore, absent other grounds for a demurrer (e.g., failure to meet heightened pleading standard), the court OVERRULES the demurrer as to the fraud COA.

Based on the foregoing, the court SUSTAINS the demurrer without leave as to the 1^st through 4^th COAs and OVERRULES the demurrer as to the 5^th COA for fraud.

[1] Marvin v. Marvin (1976) 18 Cal. 3d. 660 provides a legal claim to enforce an express or implied agreement for the sharing of support or property between non-marital partners.

[2] The complaint defines “Equitable Property” as the property that “Defendant acquired as a result of her skills, efforts, labor and earnings, personal and real property.” (Complaint ¶10.)

[3] The court grants Defendant’s request for judicial notice (RJN) of Nos. 1-4.

[4] Defendant’s demurrer does not provide the exact subsection. However, as the statute of limitations is generally asserted on the grounds that a claim fails to state sufficient facts to support a COA, the court presumes subsection (e) is at issue.

[5] Defendant explains that the “multiple documents submitted to the court have a breach/repudiation date of March 31, 2021—the complaint is not the only document that lists March 31, 2021 as the date of the alleged breach.” (Reply p. 21-24.) However, the judicially noticed matters in the family law case do not bear a March 31, 2021 date. That said, as the documents support Defendant’s general argument which is that Plaintiff was aware of the alleged breach by March 31, 2021, the court will expand upon the argument.

[6] Though not articulated by Defendant, the SOL for the declaratory relief COA is based upon the underlying COA for breach of an oral agreement. (See United Pacific-Reliance Ins. Co. v. DiDomenico (1985) 173 Cal.App.3d 673, 676, emphasis added [“The period of limitations applicable to ordinary actions at law and suits in equity should be applied in like manner to actions for declaratory relief. Thus, if declaratory relief is sought with reference to an obligation which has been breached and the right to commence an action for ‘coercive’ relief upon the cause of action arising therefrom is barred by statute, the right to declaratory relief is likewise barred.”].)